***UPDATE 11/18/2016*** Today the Department of Homeland Security published a final rule that will expand the class of nonprofit organizations that are exempt from the H-1B quota. Under the new rule, a nonprofit organization may be exempt from the H-1B quota if it “has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.” (Emphasis added). The rule will also exempt such nonprofits from the ACWIA fee. The new rule will take effect on January 17, 2017.

The O and P visa categories are familiar tools used by museums, performing arts centers and other cultural nonprofits to engage distinguished artists, performers and related workers for short-term projects -- and O-1 visas may sometimes be used to facilitate longer-term hires of extraordinary employees. The O and P visa categories are of little use, however, when it comes to hiring regular employees – people who bring professional competence, specialized knowledge and/or a special cultural background, but who do not satisfy the O and P regulations’ strict standards for “extraordinary ability” or “international recognition.” This article focuses on visa options for hiring foreign workers who may not be famous, but are nonetheless important additions to the cultural nonprofit workforce.

As a matter of necessity, cultural nonprofits seeking to hire “regular” employees have turned to visa programs (such as the H-1B program) that are designed for the business world, and are a poor fit for most non-profits. Although the H-1B program has special provisions for certain nonprofits, those provisions have been under-utilized due to strict interpretation by federal government adjudicators and lack of public awareness. In recent years, however, increasing demand for new H-1B visas has overwhelmed the statutory quota (also known as the "H-1B cap") of 65,000 per year,[1] compromising the program’s predictability and utility for all employers. At the same time, there are signs of increased generosity in the government’s approach to the H-1B program’s special accommodations for certain categories of nonprofits. In this environment, these provisions take on increased importance and are worthy of careful consideration.

This article highlights features of the H-1B visa program that preserve its usefulness for some nonprofits, even as it becomes increasingly unworkable for most employers. It also describes how the Q-1 visa, a quota-free nonimmigrant category designed specifically to foster international cultural exchange, can be used by employers in the arts and cultural sectors to engage foreign workers and trainees.

H-1B Cap Exemptions, ACWIA Fee Exemptions and Prevailing Wages

The H-1B visa program facilitates the employment of foreign professionals working in a “specialty occupation,” i.e., an occupation in which a Bachelors degree in a specialized field of study, or the equivalent, is normally the minimum requirement for entry-level employment.[2] The program was designed to enhance the productivity and competitiveness of U.S. businesses by enabling U.S. employers to hire, on a temporary basis, the best available candidates for their job openings. As the workhorse of employment-based immigration, the H-1B visa program has been widely used by for-profit businesses and non-profit organizations alike.

Today the H-1B visa program is in crisis, damaged by widely-publicized abuses of a handful of employers and hobbled by the wholly-inadequate annual quota. For the past four years, the “H-1B cap” has been reached in the first five days of the April filing period, leaving an H-1B drought for the rest of the year. For the past two years, an H-1B petition filed during the first five days of April faced a roughly one in three chance of being accepted and processed to completion. Some large corporations file thousands of petitions in the H-1B “lottery” each year despite the low expected yield, but non-profits generally cannot afford to expend resources this way.

While the H-1B visa program has become impractical for many employers, statutory exemptions from the H-1B cap allow institutions of higher education and some nonprofit organizations to continue to use the H-1B visa program reliably. In the interest of ensuring a continuous supply of foreign professionals to further U.S. higher education and research, the Immigration and Nationality Act exempts employees of universities and other institutions of higher education (as defined in section 101(a) of the Higher Education Act of 1965[3] (20 U.S.C. 1001(a)) from the H-1B cap.[4] This exemption is also available to “affiliated or related nonprofit entit[ies]” that are connected to an institution of higher education through “shared ownership or control by the same board or federation, or attached to an institution of higher education as a member, branch, cooperative or subsidiary.” 8 C.F.R. 214.2(h)(19)(iii)(B).

Colleges and universities use this exemption routinely to hire foreign professionals in H-1B status. Teaching hospitals and nonprofit institutions and laboratories engaged in scientific research also regularly claim exemption from the cap under this provision, and are generally successful when they can establish affiliation with a university (or other institution of higher education) through “shared ownership and control.” While most commonly used by organizations in medical and scientific fields, the exemption is available to any entity that is “affiliated or related” to an institution of higher education and that has been approved by the Internal Revenue Service as tax exempt “for research or educational purposes.” 8 C.F.R. §214.2(h)(19)(iv)(B). As such, it should be considered by university-affiliated museums, galleries, performing art centers and other types of cultural nonprofit organizations.

While current law requires that a nonprofit entity have shared ownership or control with an institution of higher education in order to qualify as “affiliated or related,” the Department of Homeland Security has recently proposed a more generous interpretation that may benefit independent nonprofits that have (or develop) contractually-based joint programs with institutions of higher education. [5] If adopted, the proposed rule will extend the H-1B cap exemption to nonprofit entities that have entered into a formal written affiliation agreement and established an active working relationship with an institution of higher education, if one of the primary purposes of the affiliation is to directly contribute to the research/education mission of the institution of higher education. [NOTE: this change has been adopted and will go into effect on 1/17/2017; see update at top of this article.]

In addition to the exemption for college- or university- “affiliated or related” nonprofits, the H-1B program provides a separate exemption from the H-1B quota to independent nonprofit research organizations.[6] A nonprofit research organization is a nonprofit entity that is primarily engaged in basic research and/or applied research.[7] Basic research is general research to “gain more comprehensive knowledge or understanding of the subject under study” that is conducted without specific applications in mind. Applied research includes “research investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes or services,” and “may include research and investigation in the sciences, social sciences or humanities.”[8] This exemption makes it possible for a museum or similar organization, that engages primarily in mission-driven scholarly research to expand knowledge and understanding in connection with the development of exhibitions or other programs, to hire cap-exempt H-1B professional employees as needed notwithstanding the exhaustion of the H-1B quota every early April.[9]

U.S. Citizenship & Immigration Services recognizes that, in addition to exempting persons employed directly by institutions of higher education, affiliated nonprofits, nonprofit research organizations and government research organizations, Congress intended to facilitate employment of foreign professionals at such institutions to support U.S. education and research. Therefore, USCIS policy exempts persons who will be employed on site at an institution of higher education, affiliated nonprofit, nonprofit research organization or government research organization, if the employment “directly and predominately further[s] the normal, primary, or essential purpose, mission, objectives or function of the qualifying institution, namely, higher education or nonprofit or governmental research.”[10]

Additional Accommodations for Certain Nonprofits in the H-1B Program: Exemptions from the ACWIA Fee and Cross-Industry Prevailing Wages

Institutions of higher education and nonprofit entities that are exempt from the H-1B quota may also benefit from two additional provisions in the H-1B visa program: exemption from the American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”) fee, and an accommodation in the determination of the prevailing wage.

Passed in 1998 during a period of high demand for H-1B visas,[11] ACWIA was the product of a legislative compromise whereby the quota was temporarily increased in exchange for the imposition of new fees on H-1B employers to fund education and training for U.S. workers.[12] The quota dropped back down to 65,000 after three years, but the ACWIA fees still exist and have in fact increased since ACWIA was passed.[13] Fortunately, ACWIA exempts institutions of higher education, affiliated nonprofit organizations, nonprofit research organizations, and government research organizations (i.e., entities that do not benefit from the increased quota because they are cap-exempt) from paying the ACWIA surcharges. Primary or secondary educational institutions and nonprofit entities that engage in established curriculum-related clinical training programs for students are also ACWIA fee-exempt (though they are not H-1B cap-exempt).[14]

ACWIA also included an accommodation for certain nonprofits relating to salary requirements. The H-1B visa program requires employers to pay H-1B employees at least the prevailing wage for the occupation in the geographic area, or the actual wage paid by the employer to other workers in the same occupation, whichever is higher. The “prevailing wage” is defined as the average wage paid to similarly employed workers in a specific occupation in the area of employment. Employers are required to identify the prevailing wage based on one of three sources: (1) a prevailing wage determined by the U.S. Department of Labor’s National Prevailing Wage Center (NPWC); (2) a survey conducted by an independent authoritative source; or (3) another legitimate source of information (which may include a collective bargaining agreement). Although an NPWC-determined prevailing wage has the benefit of offering a “safe harbor” that makes the determined wage conclusive for purposes of any future audit, most employers rely upon an “independent authoritative source.” The most commonly used “independent authoritative source” is the Department of Labor’s Occupational Employment Statistics Survey (“OES survey”). The OES survey and most private wage surveys aggregate wage data from multiple industries, and report average wages that are often substantially inflated in comparison to salaries in the non-profit world. Nevertheless, the OES survey is the default source of NPWC-determined prevailing wages, and the Department of Labor requires that “independent authoritative sources” of prevailing wage statistics reflect the wages of workers similarly employed in the area of intended employment “collected across industries that employ workers in the occupation.”[15]

In recognition of the burden that cross-sector wage floors pose for cost-sensitive education and research organizations, Section 415 of ACWIA and its implementing regulations specifically authorize institutions of higher education, affiliated or related nonprofit entities, nonprofit research organizations and governmental research organizations to use more specific wage statistics as H-1B salary benchmarks. For such employers, ACWIA provides that the “prevailing wage level shall only take into account employees at such institutions and organizations in the area of intended employment.”[16] The Board of Labor Certification Appeals has recently clarified that the prevailing wage obligation of an AWCIA employer may be based on wage statistics that reflect salaries paid by the same category of ACWIA employer, and does not require reliance on wage statistics that reflect salaries paid by the full universe of ACWIA employers.[17] This ruling should allow nonprofit organizations to pay salaries to H-1B workers that are more reflective of actual wage levels in their industries, rather than forcing them to pay salaries based on wage statistics that are muddled by the inclusion of data statistics from for-profit companies or other categories of ACWIA employers.

Q-1 Visas for International Cultural Exchange Programs

The Immigration Act of 1990 – the same law that set the H-1B cap at 65,000 visas per year – also created the Q-1 visa to facilitate international cultural exchange.[18] The Q-1 visa program allows foreign nationals aged 18 and up to enter the U.S. for up to 15 months, to work as “cultural exchange visitors” in positions that facilitate the sharing of the history, culture and traditions of their home countries with the American public. While not designed exclusively for the non-profit sector,[19] the Q-1 visa category is well suited to the temporary hiring needs of many non-profits that offer culturally-specific public programming in the United States. The limited 15-month validity period clearly limits the utility of the category, but cultural nonprofit employers may find the Q-1 visa useful to fill a short-term need, to extend the hire of an F-1 (student) visa holder who has run out of OPT (optional practical training) work authorization, or to engage a person’s services while exploring longer-term visa options. Employers may also establish an ongoing Q-1 hiring program that brings in groups of Q-1 visitors for terms of up to 15 months on a rotating basis.[20]

Use of the Q-1 visa program requires a “qualified employer” that is actively doing business in the United States,[21] that has the financial ability to compensate the cultural exchange visitor participant,[22] and that maintains an established “international cultural exchange program.” A “qualified employer” or its agent[23] may petition USCIS to designate a program as a Q-1 “international cultural exchange program” if it satisfies the following criteria:

· Accessibility to the public. The international cultural exchange program must take place in a school, museum, business or other establishment where the American public, or a segment of the public sharing a common cultural interest, is exposed to aspects of a foreign culture as part of a structured program. Activities that take place in a private home or an isolated business setting to which the American public, sharing a common cultural interest, does not have direct access do not qualify.

· Cultural component. The international cultural exchange program must have a cultural component which is an essential and integral part of the international cultural exchange visitor's employment or training. The cultural component must be designed, on the whole, to exhibit or explain the attitude, customs, history, heritage, philosophy, or traditions of the international cultural exchange visitor's country of nationality. A cultural component may include structured instructional activities such as seminars, courses, lecture series, or language camps.

· Work component. The international cultural exchange visitor's employment or training in the United States may not be independent of the cultural component of the international cultural exchange program. The work component must serve as the vehicle to achieve the objectives of the cultural component. The sharing of the culture of the cultural visitor's country of nationality must result from his or her employment or training with the qualified employer in the United States.”[24]

Q-1 employers can include museums and performing arts centers, cultural awareness organizations (e.g., the Alliançe Française network, Tibetan cultural societies, Hellenic organizations), folk and traditional arts organizations (e.g., programs offering workshops or presentations featuring Taiko drumming, Irish dance or Guatemalan backstrap weaving) and organizations that sponsor seasonal or other short-term programs, festivals, parades, tours, fairs and other public performances and celebrations focused on a specific national culture (e.g., a French film festival, a limited run by an Irish theater group, a tour by an Israeli dance troupe or an Algerian rai music ensemble). While organizations that cater to closed communities (i.e., that are not accessible to the public) cannot utilize the Q-1 visa program,[25] a cultural or ethnic heritage organization that exists primarily to preserve and present a specific national identity or heritage should qualify if its programs are open to the public. A museum, performing arts center or other organization that does not focus all of its programming on a specific nationality may also utilize the Q-1 program to staff programs that do feature a specific national culture (e.g., a visiting curator from China to plan an exhibition on Chinese fashion). However, USCIS has denied Q-1 petitions in cases where it has found that cultural exchange was tangential to the employer’s primary purpose.[26]

If a qualifying international cultural exchange program is shown to exist, an employer may hire cultural exchange visitors to participate as either workers or trainees in Q-1 status.[27] Q-1 cultural exchange visitors may be artists, performers, craftspeople, teachers and others whose work will involve direct engagement with members of the American public. They may also include choreographers, directors, stage managers (and crew), program managers, programming assistants, curriculum specialists, and other personnel who will not have direct contact with the public but whose work contributes in an essential way to the cultural exchange.[28] Each cultural exchange visitor must be at least 18 years of age, qualified to perform the services contemplated by the program and capable of communicating effectively about the cultural attributes of his or her country of nationality.[29]

CONCLUSION

The employment of nonimmigrant workers by for-profit American businesses facilitates entrepreneurship, advances technological innovation and helps keep jobs in the United States. The employment of nonimmigrants by museums, arts centers and other cultural nonprofit organizations is no less important: it is a catalyst for the continued enrichment of American culture through cultural exchange, and a critical vehicle for maintaining the United States’ central position in the global cultural landscape.

Although the H-1B visa program is no longer a reliable staffing mechanism for most employers, narrow provisions in the H-1B program that benefit certain nonprofits remain available and show signs of broadening. USCIS has proposed a more liberal reading of “affiliation” that may expand the universe of cap-exempt employers, and the Board of Alien Labor Certification Appeals (BALCA) has endorsed a more nuanced approach to the determination of prevailing wages in the nonprofit sector. As bread-and-butter cap-subject H-1B petitions become impractical for all but the largest and wealthiest companies, nonprofits in the social sciences and humanities – as well as the hard sciences -- should seize opportunities in the H-1B program where they find them. In addition, arts and cultural organizations familiar with O and P visas for artists and performers may find the Q-1 visa to be a worthwhile addition to their visa toolboxes.

Sharon Phillips is an immigration attorney in New York, NY. Her practice includes employment- and family-based immigration and naturalization, with a special focus on nonimmigrant visa options for the arts and cultural sectors. This article represents the views of the author based on current authority and should not be construed as legal advice.

Posting date: August 11, 2016

[1]In addition to this quota, H-1B visas are available to an additional 20,000 H-1B beneficiaries who hold U.S. Masters or higher degrees. Free trade agreements between the U.S. and Chile and Singapore provide an additional 6,800 H-1B visas per year reserved for nationals of those countries.

[2]While most employers are not required to attempt to recruit a U.S. worker before petitioning for a foreign H-1B employee, all employers are required to pay H-1B employees at least the prevailing wage for the occupation in the geographic area, or the actual wage paid by the employer to other workers in the same occupation (whichever is higher). H-1B employees are allowed a total of six years in H-1B status, granted in increments of up to three years. The six-year limitation does not apply to certain H-1B workers whose immigrant applications are in progress.

[3]Section 101(a) of the Higher Education Act of 1965, (Pub. Law 89-329), 20 U.S.C. Section 1001(a), defines institution of higher education as “an educational institution in any State that (1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate; (2) is legally authorized within such State to provide a program of education beyond secondary education; (3) provides an educational program for which the institution awards a bachelor’s degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree; (4) is a public or other nonprofit institution; and (5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.”

[4]Immigration & Nationality Act Sections 214(g)(5)(A) and (B). See also, e.g., USCIS Memorandum from Michael Aytes, “Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on §103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313),” (June 6, 2006) (“Aytes Memo 2006”); USCIS Adjudicators’ Field Manual, Chapter 31.3(g)(13).

[5]“Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” 80 Fed. Reg. 81899 (December 31, 2015) (available at https://www.federalregister.gov/articles/2015/12/31/2015-32666/retention-of-eb-1-eb-2-and-eb-3-immigrant-workers-and-program-improvements-affecting-high-skilled#h-69 ).

[6]This exemption is also available to government research organizations. A governmental research organization is a United States (federal) government entity which has as its primary mission the performance or promotion of basic research and/or applied research.

[7]The H-1B regulation establishing this exemption from the quota does not define nonprofit research organization. USCIS has instructed its adjudicators to apply the definition of this term that appears in the H-1B regulations defining a parallel exemption from the ACWIA fee (discussed further below). See Aytes Memo 2006.

[8]8 C.F.R.§21.42(h)(19)(iii)(C).

[9]Cultural organizations that cannot demonstrate a fundamental commitment to the expansion of knowledge through research, and/or that engage primarily in public programming that is not significantly research-based, can expect to encounter difficulty in establishing eligibility for this exemption. USCIS may request evidence that establishes the organization’s research activities, such as the organizing instrument defining the primary purpose of the organization; organization literature (i.e., mission statement, brochures, books, articles, research papers) and/or a copy of the petitioner’s IRS Form 990, Return of Organization Exempt from Income Tax, as evidence of the organization’s primary exempt purpose.

[10]See Aytes memo 2006. USCIS may request a copy of the petitioner’s IRS Form 990, Return of Organization Exempt from Income Tax, as evidence of the organization’s primary exempt purpose.

[11]Immigration Act of 1990 (Pub.L. 101–649, 104 Stat. 4978, enacted November 29, 1990).

[12]ACWIA increased the annual H-1B quota from 65,000 to 115,000 for Fiscal Year 1999; 115,000 in Fiscal Year 2000; and 107,500 in Fiscal Year 2001. The quota reverted to 65,000 for Fiscal Year 2002 and thereafter.

[13]Under current law H-1B employers with more than 25 full-time equivalent employees in the United States are currently required to pay an ACWIA fee of $1,500 with the initial H-1B petition filed on behalf of an employee, and with that employee’s first H-1B extension petition. Employers with 25 or less full-time equivalent employees are required to pay an ACWIA fee of $750 with an employee’s initial H-1B petition and first extension petition.

[14]Section 214(c)(9)(A) of the Immigration & Nationality Act and 8 C.F.R.§21.42(h)(19)(iii)(C).

[15]National Prevailing Wage Policy Guidance (Revised November 2009), p. 16. This is not simply the result of a lack of sufficiently refined data sets, but a matter of policy. The Department of Labor takes the position that “[f]actors relating to the nature of the employer, such as whether the employer is public or private, for profit or nonprofit, large or small, charitable, a religious institution, a job contractor, or a struggling or prosperous firm, do not bear in a significant way on the skills and knowledge levels required and, therefore are not relevant to determining the prevailing wage for an occupation….” Id. This context-blind approach to the valuation of “skills and knowledge” for prevailing wage purposes was first established by Hathaway Childrens Services, 1991-INA-388 (Feb. 4, 1994), an en banc decision of the Board of Alien Labor Certifications Appeals. Hathaway overruled an earlier BALCA decision that reflected a more nuanced vision of labor markets. In passing Section 415 of ACWIA (discussed in text), Congress rejected Hathaway and mandated that certain nonprofit entities could calculate prevailing wages without sampling across an industry as a whole.

[16]20 CFR Section 655.731(a)(2)(vii) (emphasis added).

[17]In the Matter of University of Michigan, BALCA Case No.: 2015-PWD-00006 (November 18, 2015). NPWC-determined wages for all ACWIA entities continue to be based on the ACWIA Higher Education Database, but the Department of Labor has acknowledged that ACWIA requires a more refined approach – at least for covered nonprofits. The preamble to the final rule implementing Section 415 of ACWIA notes that ACWIA employers “are always free to submit alternative sources of wage data that survey individuals employed by the affected entities.” 69 Fed. Reg. at 77326, 77371. Non-ACWIA nonprofits are, unfortunately, still subject to the Hathaway rule. See supra note 16.

[18]Section 101(a)(15)(Q) of the Immigration & Nationality Act defines a Q-1 international exchange visitor as:

“an alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily (for a period not to exceed fifteen months) to the United States as a participant in an international cultural exchange program approved by the Secretary of Homeland Security for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the country of the alien's nationality and who will be employed under the same wages and working conditions as domestic workers....”

[19]By all accounts, the Walt Disney Company was a driving force behind the establishment of the Q-1 visa program. Disney employs numerous Q-1 visa holders in a variety of roles in the international pavilions at the Epcot Theme Park.

[20]If a person has previously been admitted to the U.S. as a Q-1 international cultural exchange visitor, (s)he must have been outside of the U.S. for the immediate prior year to qualify for re-admission in Q-1 status. 8 C.F.R. Section 214.2(q)(3)(iv).

[21]8 C.F.R. Section 214.2(q)(4). This provision requires that a qualifying Q-1 employer be a “U.S. or foreign firm, corporation, nonprofit organization or other legal entity” that has employees and that is engaged in the “regular, systematic, and continuous provision of goods and/or services (including lectures, seminars and other types of cultural programs).” 8 C.F.R. Section 214.2(q)(1)(iii).

[22]The employer must certify in the Q-1 petition that the wages and working conditions provided to the cultural exchange visitor will be comparable to those accorded to domestic workers who are similarly employed. 8 C.F.R. Section 214.2(q)(4)(ii)(B). While the regulation does not establish an explicit prevailing wage requirement, the Service’s responses to public comments suggest that in certain circumstances, paying wages to a cultural exchange visitor that are consistent with the employer’s compensation of other workers may not be sufficient:

“It would be necessary, for example, to reject a petition if there were evidence that the petitioner pays its domestic employees wages significantly below those paid to other domestic workers similarly employed in the area and that the number of domestic workers employed by the petitioner is so small as to suggest a subterfuge to avoid the statute's requirement that the cultural exchange visitors be `employed under the same wages and working conditions as domestic workers.’"

57 Fed. Reg. 55056, 55059 (Nov. 24, 1992). Therefore, a Q-1employer should be prepared to demonstrate that it pays wages comparable to those paid by other employers in the geographic area of employment for comparable positions.

[23]The petitioner must be the employer or its designated agent. In contrast to the kinds of entities that may serve as agents for O and P petitions, a Q-1 agent-petitioner must be an individual “who has been employed by the qualified employer on a permanent basis in an executive or managerial capacity,” and who is a U.S. citizen or permanent resident. 8 C.F.R. Section 214.2(q)(1)(iii).

[24]8 C.F.R. Section 214.2(q)(3)(iii).

[25]Foreign language classes or cultural programs offered by a religious organization that are open only to members of the congregation, or classes or programs offered by a primary or secondary school that are part of its established curriculum and restricted to its students, may be considered activities taking place in an “isolated business setting” in violation of the “public access” requirement.

[26]For example, USCIS and the Administrative Appeals Office have on numerous occasions denied Q-1 petitions filed by hotels and resorts for “cultural associates” whom the employers claimed would share their culture of nationality with American hotel guests, but whom USCIS found would primarily be assigned to traditional hospitality industry roles. See, e.g., Matter of B-M-G, Administrative Appeals Office, March 29, 2016 (non-precedent decision). In these cases employers argued that through daily interactions with hotel guests, cultural associates “wearing a country-specific nametag or native dress, handing out a recipe or brochure, decorating the hotel's front desk, displaying flags and maps, or playing international music” would become catalysts for cultural exchange. USCIS and the AAO have repeatedly rejected this argument, finding that while such interactions might involve “casual and unstructured cultural exchanges,” “the cultural aspects of the participants' activities appear to be tangential to their tasks as hotel employees responsible for the day-to-day operations of the front desk and other departments.” Id. Applying the same analysis, the USCIS and the AAO have denied Q-1 petitions for chefs specializing in a foreign cuisine. See, e.g. In re _, Administrative Appeals Office, February 18, 2014 (non-precedent decision; a restaurant employee is “not eligible for Q-1 classification unless the restaurant is specifically structured and operated as a cultural exchange program.”). As noted above, the Q-1 visa program is not restricted to nonprofit organizations, but the lack of a commercial purpose may help establish that the primary purpose of a program or project and the essential goal of the cultural exchange visitor’s participation is international cultural exchange.

[27]A Q-1 petition simultaneously requests designation (or re-designation) of an “international cultural exchange program” and the admission of one or more international cultural exchange visitors who will participate in the program. A Q-1 petition defining an international cultural exchange program or event can request Q-1 classification of a single key individual, or for an entire team of people needed to produce a cultural event (i.e., actors, stage managers and technicians), provided that each individual’s role will involve sharing the culture of his or her country of nationality.

[28]The USCIS Administrative Appeals Unit has recognized (in non-precedent decisions) that people who are directly engaged in cultural exchange are eligible for Q-1 classification even if their work primarily takes place behind the scenes. These cases are more challenging than petitions for performers, teachers and other cultural workers who engage directly with the public, but can be approved if the employer establishes “a direct connection between the employment and the cultural component of the program.” 57 Fed. Reg. 55056, 55058 (Nov. 24, 1992). Positions involving behind-the-scenes work that is not directly connected to the cultural exchange (i.e., office staff, marketing specialists) may not be eligible for Q-1 classification.

[29]8 C.F.R. Section 214.2(q)(3)(iv). As noted above, if a person has previously been admitted to the U.S. as an international cultural exchange visitor, (s)he must also have been outside of the U.S. for the immediate prior year. Id.